Time to bin the filibuster

04/03/17

There is a tide in the affairs of men.Which, taken at the flood, leads on to fortune;Omitted, all the voyage of their lifeIs bound in shallows and in miseries.On such a full sea are we now afloat,And we must take the current when it serves,Or lose our ventures. Julius Caesar by William Shakespeare, Act 4, scene 3, spoken by Brutus

In 2013, the then majority party in the Senate employed a high-handed parliamentary maneuver to abolish the filibuster rule for the confirmation of appointments (aside from Supreme Court justices); no change was made re the use of filibusters to block legislation. Senate Democrats execute “nuclear option,” 12/2/13.

At a 2/24/17 SAFE meeting, we considered whether Senate Republicans would do well to finish the job and abolish the filibuster altogether. The following handout was used as a focal point for the discussion.The consensus was that if Republicans wound up “going nuclear” re the Gorsuch appointment, they might as well do away with the filibuster while they were at it. Subsequent developments reinforce this conclusion.

I. Supreme Court - An assumption that Senate Democrats would attempt to block a confirmation vote for Judge Gorsuch seems to be holding. Majority Leader Mitch McConnell has called for a Senate vote by April 7, before a two-week break in the action, so this week should tell the tale.

Some Republican senators are leery of supporting a change in the filibuster rule, and there has been talk of a possible compromise. Say Democrats agreed to an up or down vote on Gorsuch – which would almost surely result in his confirmation – in exchange for a Republican agreement not to change the rules for future Supreme Court appointments. Senate braces for fallout over Supreme Court fight, Jordain Carney, thehill.com, 3/28/17.

The “advise and consent” language of the Constitution provides no basis for requiring 60 Senate votes to confirm Supreme Court justices, however, and many conservatives would view the proposed agreement as a Republican sellout. Senate Republican suicide, Wall Street Journal, 3/30/17.

Democrats could guarantee that no one to the right of Justice Stephen Breyer can be confirmed. This would reward the furthest left Senators for their total resistance, which would in turn empower the most recalcitrant voices in the GOP caucus. Far from empowering moderates, a filibuster deal would reward the likes of Elizabeth Warren and Rand Paul.

At last report, it seemed nearly certain that Senate Republicans would “go nuclear,” and Senate Minority Leader Chuck Schumer was warming up to condemn them for doing so. Schumer warns GOP against rules change to confirm Gorsuch to Supreme Court, newsmax.com, 3/31/17.

•"He's bound and determined to change the rules and trample on Senate tradition" to get a conservative nominee approved, Schumer said of McConnell. "Let the public judge whether that is a good thing."

• "Senate Republicans are acting like if Gorsuch doesn't get 60 votes they have no choice but to change the rules," Schumer said. "That is bunk." He claimed that Trump should produce a more mainstream nominee instead.

II. Legislation – We don’t know of anyone other than SAFE who has suggested that the filibuster should simultaneously be abolished for legislative business, but let’s consider the arguments for doing so.#LEGISLATIVE EFFICIENCY – Abolishing the filibuster should speed the passage of bills through the Senate, which would seemingly mitigate perennial complaints about how difficult it is for Congress to get things done. But would that necessarily be a good thing?

Perceptions about legislative gridlock are colored by one’s views of the legislation under consideration. When liberals were pushing for passage of the Affordable Care Act in 2010, for example, SAFE was all in favor of slowing the legislative process. Gridlock won’t look so bad if it stops GovCare, 3/15/10.

For those who favor sweeping changes in the status quo, the situation is frustrating, especially with Congressional elections just around the corner. For those who think GovCare, etc. merit a thorough debate, gridlock does not look so bad.

In sum, the gain in efficiency from eliminating the filibuster would represent at best a modest plus. There would be some related effects, however, that might prove more clearly beneficial.

#CHECKS AND BALANCES – “Nature abhors a vacuum,” as the saying goes, so if enacting legislation becomes inordinately difficult this will encourage unwarranted expansion of executive branch power. Assuming continuation of current trends, the American republic could morph into an authoritarian state in which Congress would be reduced to a ceremonial role – such as those of the legislatures in Russia, Iran, etc. Listen up Congress, because you are in trouble, 3/2/15.

Abolition of the filibuster wouldn’t bring about a congressional renaissance, but it would appear to represent a step in the right direction.

#ONE WAY RATCHET – There is a built-in bias when legislation is under consideration: it’s popular to give the voters new benefits and unpopular to take established benefits away or insist that the benefits be fully paid for. Procedural impediments to action such as the Senate filibuster can accentuate this tendency, producing a system that moves in one direction while liberals are in power, but can be prevented from moving back when the political pendulum swings in the other direction.

After failing to pass “repeal and replace” legislation for GovCare, which would have served to reduce projected deficits somewhat (albeit primarily after 2020), the administration and Congress may be inclined to take up other proposals – tax cuts and infrastructure spending - that would have the opposite effect. The coming fiscal binge, Steve Chapman, townhall.com, 3/30/17.

As SAFE has noted many times, chronic overspending by the government has become a pernicious habit that can only end in a disaster. Here’s an argument to the same effect, which was prompted by updated warnings from the Congressional Budget Office. Federal budget update: The future is here, and it’s full of red ink, Veronique de Rugy, Washington Examiner, 3/31/17.

•Our public debt stands at 77 percent of GDP, while our gross debt (the money the government owes to foreign and domestic investors as well as other accounts in the government) is well past 100 percent of GDP. Gross debt is about to breach the $20 trillion mark, a record that should worry those who believe in fiscal accountability. CBO also shows that our debt problem, far from stabilizing, is getting worse very quickly.

•Importantly, CBO continues to make the case that 1) our growing debt levels are caused by continued and accelerating overspending (spending is projected to increase faster than revenue) and 2) in particular, [soaring] mandatory spending: Social Security, the major healthcare programs, and net interest.

#HEALTHCARE – There is a procedural workaround for the Senate filibuster rule (effective 60 Senate vote requirement for proposed legislation), namely the budget reconciliation process, which was set in motion for the American Health Care Act (AHCA) earlier this year. An overhaul of GovCare begins, 1/16/17.

Concerns about the technical niceties of the reconciliation process can affect the substance of the legislation presented for approval. Thus, in drafting the AHCA, some contemplated changes to current healthcare law were held for inclusion in a second bill on grounds that they would taint the filibuster-free bill. GovCare replacement proposal falls short, 3/13/17.

. . . it seems that the Senate rules are being used as an excuse to water down the initially proposed changes to GovCare, and could therefore have a big effect on the provisions that are ultimately enacted. *** [If Republicans were willing to use the nuclear option,] it would then be possible to package all the currently contemplated GovCare changes into a single bill, which could be debated, amended and voted on by the two houses of Congress without worrying about a filibuster.Being subject to filibuster, the second bill would most likely fall by the wayside leaving in place a truncated AHCA proposal that has understandably been deemed unsatisfactory by conservative Republicans. Mitch McConnell’s bucket of suck, Jen Kuznicki, joemiller.us, 3/30/17.

Many people have talked about the “third bucket” [the second bucket being HHS Secretary Tom Price’s administrative changes] of the Republican’s health care plan as one that was particularly enticing. Ted Cruz (R-Texas) explained on “Face the Nation” that the third bucket was the “sucker’s bucket.” He said that everything in the third bucket was put there because there would be a need to have eight Democrats to vote for it, according to the way the Senate is run. Cruz said that phase three was never going to happen because, “You can’t get eight Senate Democrats to agree on saying good morning.”

Republicans are still talking about a deal to revive the AHCA and get it passed by the House, but barring a decision to abolish the filibuster there isn’t much reason to expect a successful outcome. Senate rules biggest obstacle to Trump agenda on healthcare, taxes, Robert Romano, nerightdaily.com, 3/29/17.

We don’t need conservatives in Congress to bow to whatever mutant legislation might be crafted under reconciliation rules, or for Republican leaders to work with Senate Democrats to produce bills that can overcome the filibuster — instead, Senate rules should just be changed.

#BUDGET BLACKMAIL – There are a series of looming fiscal deadlines, any or all of which could be used as leverage in challenging administration/congressional Republican spending priorities.

•The national debt limit was reinstated at the current debt level on March 16; it will inevitably be exceeded although Treasury can reportedly defer the day of reckoning for months through the use of “extraordinary measures.”

•Continuing spending authority for fiscal year 2017 will expire on April 28 unless extended by Congress in the meantime, raising the specter of a government shutdown at that point.

•Spending authority (ideally appropriation bills based on an agreed budget, but probably a continuing resolution) for fiscal year 2018 must be enacted by October 1 or a government shutdown would be required at that point.

In each instance, Democrats could threaten a shutdown unless their terms were agreed to, e.g., no cutoff of funds for Planned Parenthood, no funds authorized for a border wall, no increases in defense spending unless accompanied by corresponding increases (forget the cuts shown in the president’s budget proposal) in nondefense spending, etc. Congress gears up for fight over spending after failure of healthcare bill, Kristina Peterson & Siobahn Hughes, Wall Street Journal, 3/27/17.

Do such tactics amount to blackmail? Sure, but so long as the filibuster rule remains in effect they can and will be used – making it very difficult to responsibly manage the government’s fiscal affairs (except in the sense of dividing the loot).